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SMITH v. KEIM (04/30/73)

decided: April 30, 1973.

SMITH, JR.
v.
KEIM, ET AL.



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Frank B. Smith, Jr. v. M. Burr Keim, Chairman, William J. Ramage, Secretary, William L. Kenagy, Member of the Civil Service Commission of Lower Moreland Township, Montgomery County, Pennsylvania, No. 70-9394 of 1970.

COUNSEL

Edward Stock, for appellant.

Jerome H. Harwitz, with him Silverman, Warden, Harwitz & Clancy, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 8 Pa. Commw. Page 611]

The issue here before us is whether Frank B. Smith, an appointed police patrolman of Lower Moreland Township for a probationary period, is entitled to a hearing before the Township Civil Service Commission to challenge his removal from the force.

Smith had been appointed a patrolman on April 22, 1969. This appointment was made for a six-month probationary period under § 640 of the First Class Township Code,*fn1 as amended, 53 P.S. § 55640: "All original appointments to any position in the police force . . . shall be for a probationary period of six months, but during the probationary period an appointee

[ 8 Pa. Commw. Page 612]

    may be dismissed only for a cause specified in section 637 of this subdivision. If at the close of a probationary period the conduct or fitness of the probationer has not been satisfactory to the township commissioners, the probationer shall be notified in writing that he will not receive a permanent appointment. Thereupon, his appointment shall cease; otherwise, his retention shall be equivalent to a permanent position."

At the end of that six-month period, appellant (Smith) was notified both orally and in writing that his appointment would not be made permanent and that as of that date he was off the rolls of the police department. Whereupon, he requested the Commissioners to extend his services for another six-month probationary period so that he may fully demonstrate his fitness.*fn2 In addition, he agreed that if at the end of that additional six-month probation he did not qualify for permanent tenure, he would resign. He also expressly waived whatever legal rights he may have had to serve on the force. He also acknowledged and signed a statement in which it was clearly stated that the Board of Commissioners would have all of the same legal rights at the end of the second six-month probationary period as they may have had as of the termination of the initial six-month probationary period.

Appellant served as a patrolman for the stated period and thereafter, specifically on May 15, 1970, he was notified that his performance was unsatisfactory and he would not receive a permanent appointment.

He then instituted an action in mandamus praying to have the Montgomery County Court of Common Pleas order the Township Civil Service Commission to afford him a hearing testing the validity of the action ...


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